Revenge Porn Is Awful, But The Law Against It Is Worse

It's hard not to sympathize with victims of so-called "revenge porn." Hearing women such as Rebekah Wells and Holly Jacobs talk to a concerned Katie Couric about having their bosses and colleagues see them in states of (un)dress entirely inappropriate for the office elicits a feeling of protectiveness. No one who isn't being paid for it wants months of tentative emails from concerned friends letting them know that they're naked on the internet again.

This sympathy certainly undergirds a bill recently signed by California governor Jerry Brown which outlaws revenge porn. The state of California can now add people who post naked photos of their former partners to its criminally overcrowded prisons if they do so without permission and with the intent to cause emotional distress or humiliation. Offenders may spend up to six months in jail and pay a $1,000 fine. Repeat offenders can be imprisoned for up to a year.

Now legislators in New York, Texas, Wisconsin and Georgia are looking to enact similar laws. Proposed legislation in New York would actually widen to the ban to include photos victims take of themselves. Other activists are pursuing a ban on revenge porn at the federal level.

While well-intentioned, this kind of legislation is over-broad, poses serious free-speech threats and may not even be necessary going forward.

The first thing it's important to keep in mind is that revenge porn laws criminalize speech.

The only California state senator to vote against SB 255, Leland Yee, voiced concerns about the law. "First Amendment protections are fundamental to our free society," he said in a statement to NBC News. "While I appreciate the intent of this legislation, I feel it was too broadly drawn and could potentially be used inappropriately to censor free speech."

While many would argue that there exists speech so egregious that banning it warrants violating the First Amendment, most would also agree on the extreme importance of keeping that bar very high. Banning revenge porn undoubtedly lowers that bar, and comes with some consequences which are problematic for freedom of the press.

As the ACLU has discussed, such laws can be used to censor photos with political importance. As Jess Rem pointed out for Reason magazine, people such as Jeff Hermes, Director of the Digital Media Law Project at Harvard, share this concern about the law. Hermes has stated that revenge porn laws could have kept former New York Rep. Anthony Weiner's (D) nude selfies legally suppressed.

Hermes said to take, for example:

"Circumstances where photographs exist of a political candidate who has run their campaign on their squeaky-clean image," but there are photographs of that candidate in a compromising position. "The distribution of these photos could indicate (to voters) that candidate might be lying about their past."

The difficulty in differentiating newsworthy stories and smut is the reason it's important to keep even uncomfortable speech free. Another important kind of speech the law might forbid is a photo or video which contains evidence of a crime.

In talking with Katie Couric, Rebecca Wells discusses trying to work with law enforcement to get the photos taken down. As she describes it, nothing could be done because, up until now, distributing an uncopyrighted photo wasn't illegal.

But this isn't entirely true. Civil lawsuits have always been available to victims. Late last year a Texas judge ordered an 'indefinite' lock on revenge porn site PinkMeth.com as Shelby Conklin sought "punitive damages of more than $1 million for intrusion on seclusion, public disclosure of private facts, appropriation of her name and likeness and intentional infliction of emotional distress."

The case was eventually settled, and the offenders paid restitution instead of serving time in jail. This is just one example of the many successful lawsuits by victims of revenge porn.

Before the law, there were already at least seven different kinds of laws revenge porn could have violated, depending on the circumstances. They include but are not limited to laws dealing with extortion and blackmail, child pornography, invasion of privacy, copyright infringement, voyeurism, intent and violation of the Consumer Protection Act.

Lawsuits benefit the victims through compensation, cost the state less than imprisonment, and only go to trial in a case of serious harm. In addition, allowing the courts to deal with these individual cases poses far less threat to the First Amendment than more legislation.

While the problem of revenge porn may be relatively new, the impulse to legislate every problem society faces is anything but. Lawmakers in other states and at the federal level must once again resist its call and uphold the First Amendment instead.

Reisenwitz is a Young Voices Associate and a D.C.-based writer and political commentator. She is Editor-in-Chief of Sex and the State and her writing has appeared in Forbes, the Chicago Tribune, Reason magazine, the Washington Examiner, XOJane and other outlets.